Workers' Compenstion Case Law Summaries- 6/15-9/15

By Michael J. Winer, Esq.
 

The workers’ compensation community continues to await the Florida Supreme Court’s decision in Castellanos¹ (and related attorney fee challenge cases) and in Westphal (infra). In the interim, a minor setback of sorts was suffered when the Third DCA reversed an order of a circuit judge in Miami which found the exclusive remedy provision in Fla. Stat. section 440.11 to be unconstitutional. In State of Florida v. Florida Workers' Advocates et al,. (Fla. 3d DCA 6/24/2015), the court reversed the judge, not on the constitutional merits itself, but instead on the procedural issues of mootness and standing. The Court wrote, "[t]he initial claims and parties in this case at its inception in 2011 were transformed by the present appellants and their counsel into a completely different set of claims and parties over the three years which followed. In the process, the case lost (1) the essential elements of a justiciable "case or controversy," (2) an identifiable and properly-joined defendant, and (3) a procedurally proper vehicle for the trial court's assessment of the constitutionality of section 440.11."

The DCA laid out the convoluted three year history leading up to the judge's ruling, discussing qualifying concepts of Florida Constitutional Law which might allow parties to address the constitutionality of a statute. They noted that the lack of the threshold issues of ripeness and mootness precluded them from addressing the underlying alleged constitutional arguments of FWA, WILG and Padgett, and the impermissible "piggy backing" of new plaintiffs onto a predecessor case could not create standing where the first plaintiff dismissed his claim. The court concluded that the trial court lacked a justiciable case or controversy within which to determine, and the intervenor/appellees lacked standing to assert, that the challenged provisions of the Florida Workers' Compensation Law are unconstitutional. The case is pending discretionary review with the Florida Supreme Court and the hope is that the court will consider this case along with the remainder of the constitutional issues in the above cases.

In School Board of Lee County/Johns Eastern Co. v. Huben, (Fla. 1st DCA 6/22/2015), the court addressed the issue of the right to temporary indemnity following MMI from a physical injury. Section 440.093(3) provides that, "[s]ubject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee's physical injury or injuries." The DCA found that the JCC erred in awarding psychiatric benefits in excess of the 6 month limitation period in F.S. s. 440.093(3). The JCC awarded the claimant TTD benefits for her psychiatric injury subject to 440.093(3), but found that the six months was a cumulative period, rather than a calendar period from the date of physical MMI. The DCA rejected this interpretation, indicating that, "we read section 440.093(3) to set a strict deadline after which no TTD benefits are payable on psychiatric injuries." The court said that if the legislature intended anything other than a strict calendar calculation, they would have indicated that, or they may address it in future legislative sessions.

The facts of this case revealed that the Claimant's compensable physical injury to her arm reached maximum medical improvement on January 9, 2014. It was not until July 3, 2014, that Claimant obtained an admissible medical opinion that the compensable injury was the major contributing cause of her PTSD that the PTSD renders her temporarily totally disabled. Therefore, since the Claimant reached physical MMI 5 months and three weeks earlier, the claimant gets a whopping 6 days of TTD based on the court’s interpretation. This decision exemplifies a poor interpretation of the statute by the 1^st DCA that leads to absurd results. First, when confronted with previous calculations of time as to whether the 104 week period of temporary benefits is cumulative, the DCA held it was. See Auman v. Leverock's Seafood House, 997 So. 2d 476, 478 (Fla 1st DCA 2008) (reaffirming that 104-week cap on temporary disability benefits, found in section 440.15, Florida Statutes, creates "bank" from which benefits are drawn and calculated cumulatively). The court distinguished Auman because, in their words, it appeared significant that the statute used the "word ‘months’ in contradistinction to the use of the word ‘weeks’ in other statutes." So by the court’s rationale, if the legislature would have written section 440.093(3) to provide that, ".... in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 26 weeks after the date physical MMI," then the result should be different and the Claimant should have a cumulative "bank of 26 weeks from which to draw. Is that an interpretation that makes sense? No, it does not. Months and weeks are simply units to measure time. The word "months" does not necessarily refer to a cumulative period of time just as the word "weeks" does not necessarily connote a cumulative bank of time; yet, this is exactly how the court interpreted those words.

The court’s interpretation makes even less sense when one considers that section 440.015 specifically states that the "Legislative intent" of the law is "to assure the quick and efficient delivery of disability and medical benefits to an injured worker." In fact, in Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management, 122 So. 3d 440 (Fla. 1st DCA 2013) (en banc) (the aforementioned decision currently under review in the supreme court), the court said that, "[t]he conclusion that disability benefits are available throughout the course of a worker's disability is not only supported by the text of the applicable statutes, it is also consistent with the intent of the Legislature as expressed in the Workers' Compensation Law. Section 440.015, Florida Statutes (2009)." The Court went on to state that this statement of legislative intent means that "the Legislature meant to require the continuous payment of disability benefits for an injured worker who continues to be disabled and that the 104-week limit on temporary disability benefits does not effectively terminate the injured worker's right to just compensation." Anyone reading these cases could likely conclude that this strong language in Westphal as to legislative intent and how the workers’ compensation law should be interpreted (to require "continuous payment of disability benefits for an injured worker who continues to be disabled") would at least be persuasive on the decision in Huben, such as to at least require comment by the panel. No such luck.

Wesphal is a curious case in which the court basically reversed its own prior precedent, receding from its previous en banc opinion in Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011). The decision drew vitriolic dissenting opinions. In spite of that, the en banc decision remains good law until the Supreme Court rules otherwise. Two of the three judge who dissented in Wesphal (Judges Roberts and Wetherell)² were the panel judges in Huben. The panel in Huben refused to apply the guidance of Wesphal (that "disability benefits are available throughout the course of a worker's disability") to the facts of the case. It all makes for interesting theater for the outside observer, but it is a disaster for the injured worker who is totally disabled as a result of a compensable work related injury and receives nothing beyond 6 days of benefits under the Huben decision. The message is that you can be totally disabled due to a work injury yet receive nothing in terms of disability benefits. Without any income, these workers become wards of the state and society as a whole must care for them instead of the industry who created the harm to begin with. This interpretation by the court leads to an outcome that runs completely foul of the very purpose and intent of the workers’ compensation system. See Port Everglades Terminal Co. v. Canty, 120 So. 2d 596, 602 (Fla. 1960)("... the workmen's compensation law was intended to provide a direct, informal and inexpensive method of relieving society of the burden of caring for injured workmen and to place the responsibility on the industry served.")

In Gonzalez v. Quinco Electrical, Inc./Zenith Ins. Co., (Fla. 1st DCA 7/15/2015), the court considered a request for a change of doctors. To understand this case requires an understanding that in Worker's Compensation, the employer carrier picks the doctors who will treat the claimant. You need not have a degree in rocket science to understand that insurance carriers, with obligations to their shareholders, pick doctors who are conservative, with a documented track record for always saying that conditions are not related to the accident or that no treatment is required. The only scenario in which the claimant gets to pick his own doctor is when he asks for a change of doctors, and the carrier does not respond within five days.

For injured worker who is stuck in the Worker's Compensation system with little if any input as to medical decisions and who provides treatment, it is no wonder why so much litigation has developed over the issue of the change doctors. Simply put, when the claimant gets to pick his own doctor, it can be a game changer for him. Because of this, many claimant attorneys are tempted to toe the line of ethical behavior in the manner in which they ask for a change doctors.

Such was the case here.... the claimant attorney filed a PFB, and then three weeks later, filed a Notice of Appearance. On the second page of that Notice, the claimant attorney inserted a request for a one time change. He admitted to the JCC this was done to "take advantage of" his belief that adjusters do not always fully read every document they receive. The E/C authorized their choice of a one time change doctor on the sixth day, which the claimant attorney alleged resulted in a waiver of their ability to select the physician. The JCC found under the circumstances the E/C timely responded to the claimant's request for a one time change. The DCA affirmed the JCC's ruling, finding it within his discretion to consider whether an E/C's failure to respond within five days was because of the form or context of the request. The DCA pulled no punches in finding the claimant attorney's tactic "had the effect of delaying the delivery of benefits and increasing litigation and expense, directly contrary to the self-executing system intended for workers' compensation claims." They continued that "(t)his dispute was not the result of inadvertence or ignorance, but rather was the result of an attorney's intentional act that we consider inappropriate sharp practice and gamesmanship." Quoting the Oath of Admission to the Bar and the Bar's Creed of Professionalism, they noted that "(l)awyers' adherence to these pledges and duties would eliminate the improper "gotcha" tactics that generate disputes such as this that unfairly and needlessly consume public and private resources while delaying the workers' compensation process and making it more expensive." One time changes must be requested in a "readily apparent, unobscured and unambiguous" manner to place the E/C on notice of the request.

Lastly, we have Perry v. City of St. Petersburg, (Fla. 1st DCA 8/7/2015), which reminds us all of the applicability of Daubert at every stage of proceedings. The court held that the JCC erred in determining he was not required to address Claimant's challenge, based on section 90.702, Florida Statutes, as amended July 1, 2013, regarding the admissibility of the expert opinion of the Employer's independent medical examiner, Dr. Maniscalco. The court agreed that the JCC erred in not applying such a Daubert analysis to the E/C’s IME expert opinion for the purposes of determining whether a conflict existed to justify the appointment of an EMA.

WORKERS' COMPENSATION CASE LAW SUMMARIES- 3/15 -5/15

Suarez v. Steward Enterprises/Travelers, (Fla. 1st DCA 5/12/15)
Applicability of Witness Fee Cap to EMAs

Expert medical Advisors (EMAs) are being seen with increasing frequency in the workers’ compensation arena. The legislature has limited the fees the EMA can charge for their evaluation and also has limited how much expert witnesses can charge for depositions. However, some EMAs seek to charge beyond those amount for a deposition. Here, the DCA granted the claimant’s Petition for Certiorari and quashed the JCC’s Order denying the claimant’s request to limit the EMA’s deposition fee to $200 per hour. The EMA demanded a deposition fee of $750 per hour and required a deposit of $750 prior to providing testimony. The JCC declined to determine the fee, concluding that giving a deposition is not a service contemplated by either the statute or the rule governing EMAs. Further, the JCC concluded that because "the EMA is not a mere health care provider, but an expert," the fee limitation in section 440.13(10) did not apply. On appeal, the court that the irreparable harm element of certiorari was met in this situation because if the claimant foregoes the deposition because of the impermissible cost, the claimant will be without means to either contest the EMA’s report below, or demonstrate harmful error on appeal. Turning to the question of whether the JCC departed from the essential requirements of law, the court noted that a JCC has jurisdiction to resolve issues regarding discovery, along with disputes regarding statutorily-regulated litigation charges pertaining thereto. The court further noted that section 440.13(10), provides that "[a]ny health care provider who gives a deposition shall be allowed a witness fee. The amount charged by the witness may not exceed $200 per hour." When read as a whole, the statutory limits apply to EMAs as they are health care providers as defined in Chapter 440. This decision furthers the overall intent of Chapter 440 that an efficient and self-executing system be created which is not an economic or administrative burden. Saddling either parties with exorbitant fees for depositions not only creates an economic burden, but it also would create a chilling effect on the ability of claimants with limited means to pay for the right of taking the EMA deposition.

 

Broadspire/Crawford & Tampa and Stone Container Corp. v. Jones, (Fla. 1^st DCA 5/8/2015)

Effective Date of Causation Standard

Claimant sustained injuries in a workplace explosion in 1981 and received authorized medical care for orthopedic injuries and psychological care for PTSD since that time. In October of 2013, the claimant sought payment of attendant care to his wife, which the E/C denied.

The first issue was whether the JCC’s decision to apply the causation standard in effect at the time of Mr. Jones’s 1981 workplace injury, rather than the standard in section 440.09, Florida Statutes (2013), was error. It was not. The JCC rejected the E/C’s argument that a selected portion of current version of section 440.09, relating to the "burden of proof" for causation, applies as a procedural change. Not all changes in the burden of proof are retroactive. See, e.g., S. Bakeries v. Cooper, 659 So. 2d 339, 340 (Fla. 1st DCA 1995) (holding statutory amendment restricting admissible medical evidence has no retroactive application because it depends on statutory processes relating to expert medical advisors, authorized treating providers, and independent medical examiners which altered parties’ substantive rights). The substantive rights of the parties are fixed at the time of the accident and injury. Here, court concluded that the amendment to section 440.09 in 1994 affected Mr. Jones’s substantive rights by changing an element of his claim with the additional requirement that he prove that his compensable injury is the "major contributing cause" of any other resulting injury; thus, under the current standard, if applied to his 1981 accident, Mr. Jones would be potentially precluded from establishing causation for what was previously a compensable condition under the law in effect at the time of his workplace injury. The JCC, therefore, properly declined to apply the current version of section 440.09 as to the causation of Mr. Jones’s injuries.

Babahmetovic v. Scan Design Florida Inc. / Zenith Insurance, (Fla. 1st DCA 5/1/2015)
(Mike Winer's case)

120 day Rule/One Time Change in Physician

 

The DCA reversed the JCC’s denial of a one time change based upon the E/C’s 120 day defense. The claimant lifted a heavy box at work on October 9, 2013 and injured his low back. The E/C sent him to Fast Track Urgent Care who indicated that the "injury/illness for which treatment is sought" was "work-related." Fast Track next referred Claimant to Dr. Delgado, who first saw Claimant on November 15, 2013. Dr. Delgado concluded Claimant had both a resolving lumbar muscle sprain and, as a condition preexisting the date of the work accident, degenerative disk disease. Dr. Delgado checked the same "work-related" boxes on his DWC-25. However, later the same day, the doctor sent a letter to the E/C indicating the cause "regarding the lumbar spine" was 60% the preexisting condition, and only 40% the "workplace injury." Twelve days later, the E/C issued a denial of compensability asserting the accident was not the MCC of the need for treatment. The claimant then requested a one time change which the E/C denied.

On appeal, the court held that while there must first be a compensable accident and injury before an employee is entitled to any benefit allowed in Chapter 440, the JCC erred in not recognizing the existence of a compensable injury in this case. Causation, in workers' compensation, is established by MCC, and MCC is a concept that can potentially apply at two different stages of a determination of entitlement to benefits. First, the work performed must be the MCC of a compensable injury. Second, where there is a preexisting condition, the compensable injury must be the MCC of the need for treatment. Only the first of these MCC analyses factors into a determination of compensability of the original injury. Here, the JCC's conflated the existence and cause of the injury — compensability — with the existence and cause of the need for treatment. On the facts in this case, it was not disputed that the sprain otherwise met the requirements of compensability (it occurred by accident, it resulted in injury (the sprain), it arose out of and in the course and the scope of employment). Given these facts, the JCC should not have applied an MCC analysis to determine the existence of a compensable injury, because there is no evidence (nor allegation) that the sprain was caused by degenerative disk disease or anything other than work. Because the claimant suffered a compensable injury and received treatment therefor, he is entitled to a one-time change in treating physician as "an absolute right" because he made a written request for such during the course of treatment.

The E/C also denied compensability in reliance on the 120-day rule, but did not provide written notice to Claimant of its intention to rely on that rule as § 440.20(4), Fla. Stat. (2013) requires. ("Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days.") An employer/carrier must "elect" to rely on the rule, as both the rule itself and case law indicate. See §440.192(8), Fla. Stat. (2013) ("A carrier that does not deny compensability in accordance with s. 440.20(4) is deemed to have accepted the employee's injuries as compensable. . . ."); Bynum Transp. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA 2000) ("When an E/C becomes aware that a claimant had medical needs, it should either pay for them, pay and investigate under section 440.20(4), or deny compensability."). The court held that an E/C who pays yet does not provide written notice "[u]pon commencement of payment" cannot avail itself of the 120-day rule to deny compensability, because it has elected to "pay" rather than to "pay and investigate."

This decision makes perfect sense. To hold otherwise would result in treating this notice requirement as optional, so that E/Cs are in the same exact position if they provide notice as if they fail to do so. This renders the requirement of "notice to the employee" as a meaningless surplusage, sending a message to carriers across the state that they have no obligation at all to "provide notice to the employee that it have elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days the letter." If possible, every word and provision of a statute should be given effect, and none should be treated as mere surplusage. See State v. Goode, 830 So.2d 817 (Fla. 2002)(A basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.")

Furthermore, there is precedent for the court imposing a similar penalty in similar situations in cases where the E/C fails in its duties to notify the claimant. The penalty of the E/C being precluded from raising a 120 day denial for failure to send an information letter to the claimant is akin to the penalty imposed on an E/C for failing send the claimant the notice provisions of section 440.185, Fla. Stat. See Southern Bell v. MacDonald, 671 So.2d 207 (Fla. 1st DCA 1996)(holding that the statute of limitations did not bar claim for benefits where E/C failed to advise claimant of her rights under section 440.185(2)(e), Florida Statutes (1985)). Thus, the holding of the court is a mere extension of sound legal principles to which the court has long adhered. **The E/C filed a Motion for Rehearing and Rehearing en banc which remains pending as of the time of this article.

Cuenca v. Nova Southeastern Univ./York Risk, (Fla. 1st DCA 4/9/14)
Attorney Fees/Medical Only Fees

It is the complaint of many a claimant attorney that when he enters the courtroom dealing with a fee issue, there are two opponents: counsel for the E/C and the JCC himself. Many JCCs have made it their mission to ignore the stipulations of the parties and go beyond to investigate the propriety of agreed fees rather than allowing the parties to resolve the fee issues through an agreement and put an end to the dispute. Such was the scenario in this case where the JCC refused to enter an order approving a stipulated $1500 medical only fee. The claimant filed a PFB on 12/5/13 against Nova and PMA seeking medical benefits. The E/SA never sought to dismiss this PFB. A second PFB filed on 2/14/14 named York and PMA as carrier and sought the same benefits. The parties later attended mediation and agreed to settle the claim for a lump sum and the E/SA separately agreed to pay an additional $1500 medical only fee and $275 in costs. JCC Lazarra approved the fee on the settlement, but denied the side fee and costs. The JCC conducted his own review of the DOAH docket and to his review, the stipulation showed "presumably" that the failure to respond to the first PFB was because of the wrong SA being listed, and thus, despite the stipulation of the parties to the contrary, the JCC concluded that the second response was timely.

The claimant sought rehearing and listed the specifics to support entitlement to the medical only fee. That too was denied. The DCA reversed the JCC finding the record did not support the his presumptions and held that entitlement to the fee and costs existed. Additionally, the court noted that for the JCC to properly take judicial notice of the records on the docket, he "should provide advance notice of the intention to do so and a reasonable opportunity to object." Where else but in the bizarre world of workers’ compensation does a judge refuse to accept the stipulations of the parties that a fee is owed and conduct his own investigation into the matter and to make matters worse, fail to even advise the parties that he is going to do so?

Trend's Florida Legal Elite 2015

Voting for this year’s Legal Elite attorneys began in October 2014 when Florida Trend invited all in-state members of the Florida Bar to participate. Multiple announcements publicized the ballot deadline and voting guidelines.

Lawyers were asked to name attorneys whom they hold in the highest regard or would recommend to others. Voters were also asked to name three “up and coming” attorneys, and in a separate category, outstanding attorneys working in the government and non-profit sectors.

For the 4th year in a row, Michael Winer has received the distinction and honor of being selected to Florida Trend's Florida Legal Elite 2015. The resulting lists represent fewer than 2% of the active Florida Bar members who practice in Florida.

See the following links:

http://www.pageturnpro.com/Florida-Trend/66345-Fl-Trends-Florida-Legal-Elite-2015/index.html#34

http://www.floridatrend.com/legal-elite

Law Office of Michael J. Winer, P.A.

110 North 11th Street, 2nd Floor

Tampa, Florida 33602-4202

phone: (813) 224-0000

telefax: (813) 224-0088

email: mike@mikewinerlaw.com

web site: http://www.mikewinerlaw.com/

Chairman, Workers' Compensation Section of the Florida Bar

Board Certified in Workers' Compensation

AV Rated by Martindale-Hubbell

 

WORKERS' COMPENSATION CASE LAW SUMMARIES- 11/14 -3/15

There has been a flurry of significant activity in the world of workers’ compensation over the past four months. In November in Castellanos v. Next Door, SC13-2082, the Florida Supreme Court heard oral argument on the issue of the constitutionality of the attorney fee provisions contained in section 440.34. Since the briefing was completed in the Castellanos case, the First DCA has certified the same questions in no less than six other cases. Further, the court lifted stay orders in three other cases (Richardson v. Aramark, Louis Pfeffer, et al. v. Labor Ready and Diaz v. Palmetto General Hospital) involving the same certified questions and allowed the parties to submit briefs on those issues. 

 This has obviously shown the court that the problems associated with the draconian fee limitations of section 440.34 are not mere isolated events, but rather a pervasive and systemic problem that undermines the very purpose of the workers’ compensation act, resulting in a system in which Claimants are unable to secure counsel necessary to pursue their benefits and vindicate their rights. In addition, on March 29,2015, the 3d DCA held oral argument in Padgett v. State of Florida, 3d DCA No. 14-2062 on the issue of workers’ compensation as the exclusive remedy under section 440.11 following the Order of the Trial Court that the exclusive remedy provision of the workers’ compensation act was unconstitutional. Practitioners also await the outcome of the constitutional challenges on the duration of temporary indemnity benefits as raised in the case of Westphal v. City of St. Petersburg/City of St. Petersburg Risk Management and State of Florida, SC13-1930. A written decision in favor of employees in any one of these decisions could send shock waves through the workers’ compensation system and radically alter the benefits available to injured workers. In the meantime, here are your latest case summaries:

  

In circuit court, even the most zealous carrier understands that it is axiomatic that it has to bear the cost charged by its own doctor to videotape the IME exam. In the workers’ compensation arena, carriers fight that charge, seeking to saddle claimants with paying the charges levied by their IME doctor to video the exam. In Hancock v. Suwannee County School Board/Fla. Sch. Brd. Ins., (Fla. 1st DCA 10/31/2014), the JCC ruled that he did not have jurisdiction to determine the reasonableness of the E/C IME’s $1500 charge for a videographer’s presence at the IME appointment. The basic facts were not disputed. The E/C properly noticed their IME and the doctor required a $1500 fee to record the exam. The issue of who would pay this fee remained unresolved on the morning of the IME, and when the claimant appeared with a videographer, she was turned away. The E/C sought a $600 "no show" fee from the claimant, which the JCC ultimately ordered per F.S. s 440.13(5)(d). However, the JCC stated he had no jurisdiction to determine the reasonableness of the $1,500 fee but nonetheless ordered that the Claimant "shall be responsible for any additional physician fees" assessed by the E/C’s examiner because of the videographer. In other words, the Claimant would have to pay the $1500 fee and there would be no due process for her as to the legality or reasonableness of that fee.

On appeal, the DCA limited the ruling to this jurisdictional question and reversed, holding that the JCC does have jurisdiction "to determine whether the doctor’s requirement of a $1500 advance payment for the presence of a videographer at the IME was reasonable or appropriate under the law." The court noted that there is no question that Claimant is entitled have a videographer at the IME, and there is no dispute that Claimant is responsible for paying the charges assessed by her videographer. The dispute in this case is who is responsible for paying the additional $1500 charge assessed by the doctor simply because Claimant will have a videographer present during the IME. Because the case was decided solely on jurisdictional grounds, the DCA stopped short of determining whether or not the charge was reasonable or even allowed to be assessed against the Claimant. The language of the decision at least suggested that future requests where the Claimant is saddled with the charges to videotape might not be viewed favorably. The court noted that, "A physician undertaking the role as an IME is not at liberty to demand that payment be made on his or her terms, but is instead regulated by statutorily mandated reimbursement standards. See § 440.13(12)(d), Fla. Stat. (2012); see also Florida Workers’ Compensation Health Care Provider Reimbursement Manual, 2008 Edition, § VII F.2. & I.2., at 20-22." This, combined with the requirement in section 440.13(5) that "each party requesting and selecting the independent medical examination shall be responsible for all expenses associated with said examination, including, but not limited to, medically necessary diagnostic testing performed and physician or medical care provider fees for the evaluation" should erase all doubt that carriers must pay this charge.

As a practical matter, the reasons some doctors offer to justify the recording of an examination are simply ludicrous. Some doctors maintain that they have to use a bigger room in their own office. Others maintain that the examination takes longer..... this begs the questions, does the doctor perform a more comprehensive examination on camera compared to off? The real motive is evident- profiteering. Conservative doctors know there is demand for their services and carriers would prefer to pay $1,500 extra to video tape the IME, no matter how baseless the charge, and secure a denial of benefits rather than leave the matter to risk.

Over 50 years ago, in Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla. 1960), the Florida supreme Court held that the workers' compensation law is intended to provide a direct, informal, and inexpensive method. Because of this, many have questioned whether the rigorous standard for scientific evidence in Daubert is intended to apply in workers’ compensation cases. The DCA answered this with a yes in Giaimo v. Florida Autosport/Summit Claims/Fla Retail Federation, (Fla. 1st DCA 11/26/14). There, the Claimant sustained neck and back injuries resulting in a fusion surgery at C5-6. At trial, the E/C asserted apportionment based on medical testimony that 49% was due to pre-existing injuries and 51% for the work injury. The JCC accepted this testimony over the Claimant’s Daubert objection. When asked in deposition how he arrived at the 51/49 percentage, Dr. Lee testified "when I was asked and thought about it that is the answer I came up with."

On appeal, the DCA stated that Daubert does indeed apply to workers’ compensation cases as well as "to all expert testimony, including that in the form of pure opinion." The DCA held that Dr. Lee’s opinion was inadmissible under F.S. 90.702 which sought to prohibit "pure opinion testimony" and require that admissible opinions be (1) based on sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the product of the witness applying the principles and methods reliably to the facts of the case. Although the DCA agreed Dr. Lee’s opinions were sufficient for the first element, they found they were insufficient under the second and third, as they lacked any evidence of reliable principles and methods or their application. The DCA noted that the JCC’s justification for admissibility of his opinions was precisely the "pure opinion" testimony the amendment seeks to prohibit. This decision is significant as it pertains to the defense of apportionment, which requires physicians to give percentages as to what exact percentage is related to the accident vs. what is pre-existing. No credible doctor can give an opinion that 27% of the need for treatment is pre-existing and have that opinion be the product of reliable principles and methods and the product of applying the principles and methods reliably to the facts of the case. Practically, Daubert should in most instances signal the death of the apportionment defense.

Advances serve a critical purpose in the workers’ compensation system. Carriers decide which doctors that claimants will see and then decide whether to provide benefits. Because no meaningful penalty or deterrent exists when carriers refuse to provide benefits, carriers often deny claims based on tenuous grounds and claimants then often go without. Advances provide an important stopgap relief. Unfortunately, all too often, carriers fight advances, requiring a showing of complete destitution as a predicate. In Bonner v. Miami/Dade Public Schools/Gallagher Bassett, (Fla. 1st DCA 10/7/2014), the DCA clarified that such a showing of extreme poverty is unnecessary. There, the DCA reversed the JCC’s denial of a $2,000 advance, finding his ruling exceeded the claimant’s burden to show entitlement to an advance. At the hearing on the $2,000 advance, the claimant testified without contradiction that she had been out of work for 18 months on sick leave, and returned with a reduction in wages. She further testified that an advance would "get her up to date" as well as put food in her refrigerator, gas in her car and help her pay bills. The JCC found that her bills appeared to be for luxury expenses and that there was an insufficient nexus to the accident to award the advance. The DCA noted that although an advance does require a nexus to the accident, whether the claimant was spending money on luxury items is not a consideration of F.S.§ 440.20(12). The court found that the uncontroverted evidence showed that the financial difficulties requiring the advance were due to the reduction in wages following the industrial accident and that claimants are not required to achieve "pauper status" to qualify for an advance.

Though not a workers’ compensation case, the issues relating to undocumented workers frequently arise in workers’ compensation cases. Claimants are often asked in deposition to admit to things that could expose them to criminal liability (i.e., is your SSN legal? Did you use an invalid SSN to obtain employment?) The answers would clearly result in the admission of a crime. In Appel v. Bard, (Fla. 4th DCA 1/21/15), the Plaintiffs obtained an order requiring Defendant to answer deposition questions and interrogatories asking whether he had filed federal income tax returns. Defendant filed a Petition for Certiorari, seeking to quash the order compelling him to answer, arguing that his answers could "evoke a response forming a link in the chain of evidence which might lead to criminal prosecution. The DCA granted Defendant/Petitioner’s Petition and held that where a party requests information and the opposing party asserts a 5th Amendment Privilege, the court "must exercise its discretion and determine whether it is reasonably possible that answers to either interrogatories or deposition questions could evoke a response "forming a link in the chain of evidence which might lead to criminal prosecution." The privilege is inapplicable only "if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness." The DCA found that compelling Appel to answer yes-or-no in response to whether he filed tax returns would force him to admit or deny the very thing the government would be trying to prove in a federal tax prosecution—an essential element of the crime, presumably "aiding" the prosecution by lowering the government’s burden.

In Echevarria v. Luxor Investments LLC, AIF Ins. Co. (Fla. 1st DCA 3/18/15), Claimant suffered a compensable injury that resulted in a permanent impairment rating. In need of follow up treatment, he sought an evaluation with his authorized neurologist. The JCC denied the evaluation based on a finding that "no further neurological treatment is medically necessary…" The DCA affirmed and wrote separately to refute claimant’s arguments that a claimant assigned a permanent impairment rating is entitled to ongoing palliative treatment as a matter of law, in the absence of medical testimony establishing the need for such treatment.

At first blush, this decisions seems entirely reasonable, but when you peel the layers of the onion back, what is left at the core is inedible. A claimant who suffers a compensable injury that requires treatment should, at a bare minimum, be entitled to a follow up appointment to determine if he does in fact need further care. To hold otherwise would allow carriers to deny follow up visits to claimants and require them to pay out of their own pocket to get an IME to justify the need for continued care. This is contrary to the very legislative intent as expressed in section 440.015 that "the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker ..... at a reasonable cost to the employer." What deterrent does a carrier have to denying legitimately injured claimants the right to follow up medical appointments to at least determine whether ongoing care is necessary? Unfortunately, there is none.

In Perez v. Southeastern Freight Lines, Inc./Gallagher Bassett Svcs, Inc., (Fla. 1st DCA 3/20/15), the court again clarified the standards for compensability. The DCA noted that after the claimant carries his burden to establish initial compensability of an injury, for example by a prior ruling or a stipulation, the E/C may not challenge the causal connection between the work accident and injury, but only the causal connection between the injury and the connected benefit. Further the E/C must demonstrate a "…break in the causation chain... such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the compensable injury". Thus, a Claimant, after a stipulation on compensability, is absolved of the need to reestablish objective relevant medical findings, and if there is no evidence of a break in causation, claimant meets the burden to prove causal relationship between the injury and the benefit.

The case law has always been clear that in the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found per se based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal. However, the 1^st DCA previously seemed to carve out an exception to that rule for Expert Medical Advisor (EMA) cases. See Taylor v. TGI Friday's, Inc., 16 So. 3d 312 (Fla. 1st DCA 2009)(Petitioner fails to demonstrate that the JCC's order requiring him to attend an examination with an EMA will cause a harm which is not remediable on appeal). In Gonzalez v. AMC/CCMSI, (Fla. 1st DCA 3/12/2015), the DCA seemed to provide some clarification that an improperly granted EMA meets the irreparable harm criteria. The DCA stated that the "physical examination by the EMA, were it to take place, would constitute harm not remediable on appeal because claimant objected to being physically examined." The court nonetheless affirmed because the JCC did not depart from the essential requirements of law. At least now, there is clarity that where the Claimant objects to the examination by the EMA, such exam would constitute harm not remediable on appeal.

The National Association of Distinguished Counsel selected Mr. Winer as “Nation's Top One Percent.”

In march of 2015, the National Association of Distinguished Counsel selected Mr. Winer as Member of the "Nation's Top One Percent." NADC is an organization dedicated to promoting the highest standards of legal excellence. Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate. Members are vetted by a research team, a blue ribbon panel of attorneys, and a judicial review board. By virtue of the incredible selectivity of their appointment process, only the top one percent of attorneys in the United States are awarded membership in the NADC. see http://www.distinguishedcounsel.org/

 

An Introduction to the Family and Medical Leave Act (FMLA)

When injured, often times your ability to do your job is greatly effected. Our clients often wonder what rights they have with their employer to take leave from work.  When you or a loved one experiences a serious health condition that requires you to take time off from work, the stress from
worrying about keeping your job may add to an already difficult situation.


The Family and Medical Leave Act (FMLA) may be able to help. Whether you are unable to work because of your own serious health condition, or because you need to care for your parent, spouse, or child with a serious health condition, the FMLA provides unpaid, job-protected leave. Leave may be taken all at once, or may be taken intermittently as the medical condition requires.


This guide provides a simple overview of how the FMLA may benefit you. In your time of need, sometimes you just need time.


Who Can Use FMLA Leave?
In order to take FMLA leave, you must first work for a covered employer. Generally, private employers with at least 50 employees are covered by the law. Private employers with fewer than 50
employees are not covered by the FMLA, but may be covered by state family and medical leave laws. Government agencies (including local, state and federal employers) and elementary and
secondary schools are covered by the FMLA, regardless of the number of employees.


If you work for a covered employer, you need to meet additional criteria to be eligible to take FMLA leave. Not everyone who works for a covered employer is eligible. First, you must have worked for your employer for at least 12 months. You do not have to have worked for 12 months in a row (so
seasonal work counts), but generally if you have a break in service that lasted more than seven years, you cannot count the period of employment prior to the seven-year break.


Second, you must have worked for the employer for at least 1250 hours in the 12 months before you take leave. That works out to an average of about 24 hours per week over the course of a year.


Lastly, you must work at a location where the employer has at least 50 employees within 75 miles of your worksite. So even if your employer has more than 50 employees, if they are spread out and
there are not 50 employees within 75 miles of where you work, you will not be eligible to take FMLA leave.


When Can I Use FMLA Leave?
If you work for an employer that is covered by the FMLA, and you are an eligible employee, you can take up to 12 weeks of FMLA leave in any 12-month period for a variety of reasons, including:


Serious Health Condition
You may take FMLA leave to care for your spouse, child or parent who has a serious health condition, or when you are unable to work because of your own serious health condition.


The most common serious health conditions that qualify for FMLA leave are:


1) conditions requiring an overnight stay in a hospital or other medical care facility;
2) conditions that incapacitate you or your family member (for example, unable to work or attend school) for more than three consecutive days and require ongoing medical treatment
(either multiple appointments with a health care provider, or a single appointment and follow-up care such as prescription medication);
3) chronic conditions that cause occasional periods when you or your family member are incapacitated and require treatment by a health care provider at least twice a year; and
4) pregnancy (including prenatal medical appointments, incapacity due to morning sickness, and medically required bed rest).


Military Family Leave
The FMLA also provides certain military family leave entitlements. You may take FMLA leave for specified reasons related to certain military deployments. Additionally, you may take up to 26 weeks
of FMLA leave in a single 12-month period to care for a covered servicemember with a serious injury or illness.


What Can the FMLA Do for Me?
If you are faced with a health condition that causes you to miss work, whether it is because of your own serious health condition or to care for a family member with a serious health condition, you
may be able to take up to 12 weeks of job-protected time off under the FMLA.


If you take FMLA leave, your employer must continue your health insurance as if you were not on leave (you may be required to continue to make any normal employee contributions). As long as you are able to return to work before you exhaust your FMLA leave, you must be returned to the same job (or one nearly identical to it). This job protection is intended to reduce the stress that you may otherwise feel if forced to choose between work and family during a serious medical situation.


Time off under the FMLA may not be held against you in employment actions such as hiring, promotions or discipline. You can take FMLA leave as either a single block of time (for
example, three weeks of leave for surgery and recovery) or in multiple, smaller blocks of time if medically necessary (for example, occasional absences due to diabetes). You can also take leave on a
part-time basis if medically necessary (for example, if after surgery you are able to return to work only four hours a day or three days a week for a period of time). If you need multiple periods of leave for planned medical treatment such as physical therapy appointments, you must try to schedule the treatment at a time that minimizes the disruption to your employer.


FMLA leave is unpaid leave. However, if you have sick time, vacation time, personal time, etc., saved up with your employer, you may use that leave time, along with your FMLA leave so that you continue to get paid. In order to use such leave, you must follow your employer’s normal leave rules such as submitting a leave form or providing advance notice. Even if you don’t want to use your paid
leave, your employer can require you to use it during your FMLA leave. For example, if you are out for one week recovering from surgery, and you have two weeks of paid vacation saved up, your
employer can require you to use one week of your vacation time for your FMLA leave. When you use paid leave for an FMLA-covered reason (whether at your request or your employer’s), your leave
time is still protected by the FMLA.


How Do I Request FMLA Leave?
To take FMLA leave, you must provide your employer with appropriate notice. If you know in advance that you will need FMLA leave (for example, if you are planning to have surgery or you are
pregnant), you must give your employer at least 30 days advance notice. If you learn of your need for leave less than 30 days in advance, you must give your employer notice as soon as you can (generally either the day you learn of the need or the next work day). When you need FMLA leave unexpectedly (for example, if a family member is injured in an accident), you MUST inform your employer as soon as you can. You must follow your employer’s usual notice or call-in procedures unless you are unable to do so (for example, if you are receiving emergency medical care).


While you do not have to specifically ask for FMLA leave for your first leave request, you do need to provide enough information so your employer is aware it may be covered by the FMLA. Once a condition has been approved for FMLA leave and you need additional leave for that condition (for example recurring migraines or physical therapy appointments), your request must mention that condition or your need for FMLA leave. If you don’t give your employer enough information to know that your leave may be covered by the FMLA, your leave may not be protected.

You do not have to tell your employer your diagnosis, but you do need to provide information indicating that your leave is due to an FMLA-protected condition (for example, stating that you have been to the doctor and have been given antibiotics and told to stay home for four days).


For more information, please visit (source) http://www.dol.gov/whd/fmla/employeeguide.pdf

Best Regards,

Mike

Law Office of Michael J. Winer, P.A.

110 North 11th Street, 2nd Floor

Tampa, Florida 33602-4202

phone: (813) 224-0000

telefax: (813) 224-0088

email: mike@mikewinerlaw.com

web site: http://www.mikewinerlaw.com/

Board Certified in Workers' Compensation

AV Rated by Martindale-Hubbell

The Demolition of Workers’ Comp

Over the past decade, states have slashed workers’ compensation benefits, denying injured workers help when they need it most and shifting the costs of workplace accidents to taxpayers.
In a hard hitting piece of journalism dated March 4, 2015, Michael Grabell, ProPublica, and Howard Berkes, NPR examine the systematic ills that are plaguing workers' compensation systems nation wide and the horror stories of some injured workers who have been affected by it.


The story begins with Dennis Whedbee. His crew was rushing to prepare an oil well for pumping on the Sweet Grass Woman lease site, a speck of dusty plains rich with crude in Mandaree, North Dakota. It was getting late that September afternoon in 2012. Whedbee, a 50-year-old derrickhand, was helping another worker remove a pipe fitting on top of the well when it suddenly blew.

 Oil and sludge pressurized at more than 700 pounds per square inch tore into Whedbee’s body, ripping his left arm off just below the elbow. Coworkers jerry-rigged a tourniquet from a sweatshirt and a ratchet strap to stanch his bleeding and got his wife on the phone.
“Babe,’’ he said, “tell everyone I love them.”
It was exactly the sort of accident that workers’ compensation was designed for. Until recently, America’s workers could rely on a compact struck at the dawn of the Industrial Age: They would give up their right to sue. In exchange, if they were injured on the job, their employers would pay their medical bills and enough of their wages to help them get by while they recovered.


No longer.


Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found. The cutbacks have been so drastic in some places that they virtually guarantee injured workers will plummet into poverty. Workers often battle insurance companies for years to get the surgeries, prescriptions and basic help their doctors recommend.


Two-and-a-half years after he lost his arm, Whedbee is still fighting with North Dakota’s insurance agency for the prosthesis that his doctor says would give him a semblance of his former life.
The changes, often passed under the banner of “reform,” have been pushed by big businesses and insurance companies on the false premise that costs are out of control.


In fact, employers are paying the lowest rates for workers’ comp insurance since the 1970s. And in 2013, insurers had their most profitable year in over a decade, bringing in a hefty 18 percent return.
All the while, employers have found someone else to foot the bill for workplace accidents: American taxpayers, who shell out tens of billions of dollars a year through Social Security Disability Insurance, Medicare and Medicaid for lost wages and medical costs not covered by workers’ comp.
ProPublica analyzed reams of insurance industry data, studied arcane state laws and obtained often confidential medical and court records to provide an unprecedented look at the unwinding of workers’ comp laws across the country.


Among the findings:

• Since 2003, legislators in 33 states have passed workers’ comp laws that reduce benefits or make it more difficult for those with certain injuries and diseases to qualify for them. Florida has cut benefits to its most severely disabled workers by 65 percent since 1994.
• Where a worker gets hurt matters. Because each state has developed its own system, an amputated arm can literally be worth two or three times as much on one side of a state line than the other. The maximum compensation for the loss of an eye is $27,280 in Alabama, but $261,525 in Pennsylvania.
• Many states have not only shrunk the payments to injured workers, they’ve also cut them off after an arbitrary time limit — even if workers haven’t recovered. After John Coffell hurt his back at an Oklahoma tire plant last year, his wages dropped so dramatically that he and his family were evicted from their home.
• Employers and insurers increasingly control medical decisions, such as whether an injured worker needs surgery. In 37 states, workers can’t pick their own doctor or are restricted to a list provided by their employers.
• In California, insurers can now reopen old cases and deny medical care based on the opinions of doctors who never see the patient and don’t even have to be licensed in the state. Joel Ramirez, who was paralyzed in a warehouse accident, had his home health aide taken away, leaving him to sit in his own feces for up to eight hours.

The scope of the changes, and the extent to which taxpayers are paying the costs of workplace accidents, has attracted almost no national attention, in part because the federal government stopped monitoring state workers’ comp laws more than a decade ago.
The cuts have gone so deep in some states that judges who hear workers’ comp cases, top defense attorneys for companies and even the father of the modern workers’ comp system say they are inhumane.
Presented with ProPublica and NPR’s findings, Sen. Bob Casey, D-Pa., one of the leading worker advocates in Congress, said the changes undermine the basic protections for injured workers.
The rollback “would be bad if it were happening in one state,” he said. “But the fact that a number of states have moved in this direction is disturbing and it should be unacceptable to people in both political parties.”
“They call them reforms,” Casey added. “That’s a real insult to workers."

Click here to view the entire story:
http://www.propublica.org/article/the-demolition-of-workers-compensation


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Buyer beware: Used cars are often sold with unfixed safety defects, despite recalls

It's a case of buyer beware, with potentially dangerous consequences.
More than 46 million cars and trucks on the road in the U.S. — about one-fifth the total — were recalled because of safety defects but never repaired, according to a study by Carfax, a company that sells vehicle history reports. Some of those defects have the potential to cause a crash, injury, even death.

Last year, around 5 million of those cars were sold to new owners.
That's because there is no legal requirement for dealers or individual sellers to get the repairs done before a used car is sold. They are not even obligated to tell buyers if a car is subject to a recall.

"It's a very major public safety problem," says Chris Basso, a used-car specialist for Carfax, which analyzed state registration data to determine that one-fifth of the 238 million cars on the nation's roads has an unrepaired problem that was the subject of a recall. "When those recalled cars go unfixed, they compound over the years, and it increases the chance of those parts failing."

Federal regulators are pushing for legislation that requires dealers to fix recalled used cars. Independent dealers oppose such a measure but say they might go along with a requirement to disclose recalls to buyers because a new government database makes it easier to tell if a car on their lot has been recalled.
The number of unfixed cars is certain to rise because automakers recalled nearly 64 million vehicles nationwide last year, double the old record set in 2004. Government data show that 25 per cent of car owners never get recall repairs done.
No one is sure how many crashes or injuries happen because of unheeded recalls. But buying an unrepaired car cost Carlos Solis his life. The 35-year-old father of two died Jan. 18 when shrapnel from the driver's air bag in his 2002 Honda Accord tore into his neck after a minor accident near Houston.

Solis' Accord had been recalled in 2011 to fix a faulty air bag inflator made by Takata Corp. that can explode with too much force. But neither the two previous owners, nor the independent dealer in Houston who sold Solis the car last April, had the repair done.
Solis had no other injuries, says Rob Ammons, an attorney representing his family in a lawsuit against Takata, Honda and the dealer. "You fix the defective air bag and he doesn't die," Ammons says.

Federal law requires car companies to notify owners of a recall within 60 days of finding a safety defect, which Honda did in 2011. But there's no legal requirement that companies contact the new owner if a car changes hands.
John Castro, 36, of Glen Burnie, Maryland, traded a pickup truck for a 2011 Toyota Prius in March of last year at Koons Ford in Baltimore.
Shortly after he took the car home, he read a dealer-provided Carfax report and found that his car had been recalled in February 2014 to fix a hybrid component that could malfunction and cause stalling. Koons had not done the repair, and no sales person mentioned the recall, Castro says.

"You think when you buy something, it's been checked and cleared," he says.
Dennis Koulatsos, Koons Ford general manager, says Castro's car should have been fixed because there was a safety issue. All dealers, he says, have incentives to fix recalled cars. They could lose customers to dealers who do, or they could be sued if something goes wrong.

But he also thinks dealers should be able to sell cars with open recalls if the problems don't affect safety or drivability. "Used cars are hard to get, and they depreciate by the day when they sit on the lot," he says.
A number of attempts to pass laws requiring dealers to fix recalled cars or disclose problems have stalled under opposition from carmakers, auto dealers and the U.S. Chamber of Commerce. Mark Rosekind, the new head of the National Highway Traffic Safety Administration, and Transportation Secretary Anthony Foxx are making another push.
"We cannot allow vehicles with potentially dangerous defects to leave used-car lots without the necessary repairs," Rosekind says.

Used-car dealers fought past legislation because they didn't have access to a national database to check for recalls, says Steve Jordan, CEO of the 16,000-member National Independent Automobile Dealers Association.

That changed in August when the government set up a website for dealers and drivers to check recalls by keying in the 17-digit vehicle identification number. Now, Jordan says the association may support a disclosure law, as long as the database allows dealers to check multiple numbers at a time to save time and labour.
The association still opposes a repair requirement because independent dealers would be at the mercy of competitors franchised by automakers. Those dealers are the only ones authorized to do recall repairs.

The National Automobile Dealers Association, which represents new-car dealers that sell used cars, hasn't taken a position on the repair requirements. It is waiting for the government to estimate the cost, the effect on sales and whether the measure would save lives.
Individual sellers won't face any repair or disclosure requirements. Individuals sold just under one-third of the 42 million used cars in the U.S. last year, according to the Strategic Vision research firm.

Last year, a Honda executive floated the idea of requiring recall repairs before license plates can be renewed. That's similar to the practice in Germany, where the government can revoke registrations of cars with outstanding recalls.

U.S. federal law does require dealers to make recall repairs on new cars before selling them.
For more info.... SOURCE: http://www.mjtimes.sk.ca/Canada---World/Society/2015-02-24/article-4055478/Buyer-beware%3A-Used-cars-are-often-sold-with-unfixed-safety-defects%2C-despite-recalls/1

AM I ENTITLED TO SOCIAL SECURITY DISABILITY INSURANCE OR SUPPLEMENTAL SECURITY INCOME BENEFITS?

AM I ENTITLED TO SOCIAL SECURITY DISABILITY INSURANCE OR SUPPLEMENTAL SECURITY INCOME BENEFITS?

By: John Sharpless, Esquire and Michael Winer, Esquire

There are two disability programs operated by the Social Security Administration (SSA): 1) Social Security Disability Insurance (SSDI and/or Title II benefits) and 2) Supplemental Security Income (SSI and/or Title XVI benefits). You first must determine if you are eligible to apply for SSDI and/or SSI benefits. This determination is based on the qualification criteria and definition of disability under the SSA guidelines.

Social Security Disability (SSDI or Title II Benefits)

SSDI is a payroll-tax funded insurance program that provides monthly income and Medicare insurance benefits to people who can no longer work due to a medical disability that lasts or is expected to last for over twelve months. Benefits are paid out of the Social Security Trust Fund. If you have earned enough "work credits" (also known as quarters of coverage) you may be eligible to receive SSDI benefits. Entitlement to SSDI benefits begin five (5) months after the onset of disability and SSDI recipients become eligible for Medicare twenty-four (24) months after their date of entitlement. Benefits can be awarded retroactively for up to one year prior to the application.

Supplemental Security Income (SSI or Title XVI)

SSI is another government funded program with benefits available to aged (65 years or older), blind, or disabled people. SSI is a "need-based" program that provides benefits to people who have limited income and assets (generally less that $2,000 for an individual or $3,000 for a married couple subject to several exclusions). People who have not earned enough "work credits" to be eligible for SSDI, or have a relatively low SSDI benefit, may be eligible for SSI. SSI recipients may also become eligible for Medicaid insurance benefits. SSI benefits are not paid from the Social Security Trust Fund, but are paid out of the Social Security Administration’s annual budget. Benefits are not paid retroactively, but only begin in the month following the month of application.

The Non-Medical Requirements of the Disability Programs

There are two criteria (medical and non-medical) that must be met in order for an individual to qualify for either SSDI or SSI. Both SSDI and SSI utilize the same criteria and procedure to determine if you are medically disabled; however, the non-medical criteria for SSDI and SSI are different. The SSDI non-medical criteria requires that you have earned enough "work credits." This is determined by whether you have paid enough into the system when you were working (through payroll tax (FICA) deductions or self-employment taxes reported in income tax returns) and whether you earned enough of these credits in the five years prior to becoming disabled. The SSI non-medical requirements focus primarily on your monetary need. This is determined by your assets and income. If you meet both of the medical and non-medical criteria of SSDI and/or SSI, you will be awarded benefits.

The Definition of Disability under Social Security Law and the Five Step Sequential Evaluation

The Social Security Act defines "disability" as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." (42 U.S.C. §423 (d)(1)(A)) The Social Security Regulations set forth a five step sequential evaluation process to determine whether an individual is in fact disabled. The five Steps listed below are what the Social Security Administration (or eventually the Administrative Law Judge) will use to determine whether an individual is in fact disabled:

Step 1: Is the individual engaging in "substantial gainful activity" (SGA)? This is an evaluation as to whether the claimant is actually working by earning wages or performing self-employment and whether these wages exceed a certain threshold set by the SSA on an annual basis. For 2014 the threshold for SGA is $1,070 for non-blind individuals and $1,800 for blind individuals.

Step 2: Does the claimant have a severe impairment? This is an inquiry into whether the individual has a medically determinable impairment or combination of impairments that is "severe" in that it significantly limits an individual’s ability to perform basic work activities. Has the impairment lasted or is expected to last for 12 months or more?

Step 3: Does the claimant have an impairment that meets or medically equals the "listing of impairments"? The listing of impairments is a list of diseases and medical conditions and criteria of severity for each. If the individual’s medial condition meets the criterion, then the person is found disabled without further inquiry and Steps 4 and 5 are not considered.

Step 4: Considering the claimant’s "residual functional capacity" or RFC (what the person can do despite their medical impairments) are they capable of performing any of their past relevant work. Past relevant work is work that they performed in the last fifteen years.

Step 5: Is the claimant capable of performing other work (that exists in the national economy) that is within the claimant’s RFC given their age, education and transferable work skills. Here the Social Security Regulations make it easier to qualify for benefits if the individual is older, has less education and hasn’t worked in skilled employment in the past.

The Application Process

The first step is to apply for SSDI and/or SSI benefits. This is called the Initial Application stage. The initial application can be completed at the local SSA office, by phone, or online at www.ssa.gov. Information will be needed regarding your medical history, names and addresses of doctors and hospitals, work history and the names of employers for the past fifteen years, resources (assistance, income, assets, etc.), and personal information (including social security numbers of you and your dependents, dates and locations of marriages and divorces) . Once your application is complete and filed with the SSA, it usually takes one to five (1-5) months for a decision to be made or your initial application. The SSA has contracted with the state Disability Determination Service (DDS) (in Florida, the Office of Disability Determinations (under the Dept. of Health) to make the determination as to whether an individual is disabled. During this period, the DDS will collect your medical records, evaluate records that you have provided, have you complete many forms about work history, your pain and ability to function, and may require you to see a physician in order to make their decision. Once DDS makes a decision on your initial application, you will receive a letter stating you have been accepted (favorable) or denied. If you have been accepted, you will receive a Notice of Award detailing the SSDI and/or SSI benefits you have been awarded and the amount of your monthly payments. If you have been denied, you will have sixty (60) days to file an appeal called a "Request a Reconsideration".

The second step is to formally request a reconsideration of you claim within sixty (60) days of your initial application denial letter. The reconsideration can also be requested at your local SSA office or online at www.ssa.gov. You will need to have your initial application denial letter in order to complete the reconsideration request. The reconsideration process takes two to three (2-3) additional months and again, the disability determination is made by the state Disability Determination Service (DDS). During the reconsideration process, the DDS may also request additional information or require you to see a physician in order to make their decision. Once the DDS makes a decision on your reconsideration, you will receive a letter stating you have been accepted (favorable) or denied. If you have been accepted, you will receive a Notice of Award detailing the SSDI and/or SSI benefits you have been awarded and the amount of your monthly payments. If you have been denied, you will have sixty (60) days to file the second appeal in the process called a "Request for Hearing by Administrative Law Judge".

When the Request for Hearing is filed, the file gets transferred to the Office of Disability Adjudication and Review (ODAR) which is within the Social Security Administration. It can take anywhere from 6 month to 24 months before a hearing will be held before an Administrative Law Judge depending upon what area of the country you are in.

When should an individual seek the assistance of an attorney? An individual seeking disability benefits can hire an attorney at any stage of the process including the initial application. The decision of when to involve an attorney in the claim depends upon the needs and strengths of the individual applying. Although many individuals will be able to hand the lengthy application and forms associated with the initial claim, when the case reaches the reconsideration and hearing level, it is important that the proper evidence is obtained and evaluated early to maximize a favorable outcome. Certainly at the hearing level, it is imperative you seek the advice of a qualified attorney to assist with the case. During this process, you and your attorney will be working together preparing your claim for the hearing.

For more information regarding your SSDI and/or SSI claim, please contact Mr. Sharpless at (813) 224-0000 ext. 26 or email questions to john@mikewinerlaw.com. Mr. Sharpless has been handling SSDI/SSI claims for over 17 years. He also handles personal injury claims, Longshore and Harbor Workers’/Defense Base Act claims and Florida workers’ compensation claims.

Some valuable links to have your workers' compensation questions answered.....

People often times need resources to get more information about the confusing world of workers' compensation.  This link is an excellent place to start.  http://www.jcc.state.fl.us/JCC/resources/. A listing of the information you can get is provided below.


The best source can often times be a competent attorney well versed in the ways of the work comp world. To have your questions answered, please contact Mike Winer or John Sharpless.

Law Office of Michael J. Winer, P.A.

110 North 11th Street, 2nd Floor
Tampa, Florida 33602-4202

phone: (813) 224-0000

telefax: (813) 224-0088

email: mike@mikewinerlaw.com

web site: http://mikewinerlaw.com/

Board Certified in Workers' Compensation

AV Rated by Martindale-Hubbell

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